Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest sustained in part, denied in part.
_________________________________________________________________________________________________________________
GAO Digest:
1. Protest that Air Force failed to properly evaluate the awardee’s proposal and assess its proposal risk is sustained where, contrary to the evaluation scheme announced in the solicitation, the agency failed to evaluate staffing under all of the Mission Capability sub factors.
2. Protest that agency improperly evaluated proposals is sustained where the solicitation stated that they would be evaluated on “the extent to which” they exceeded a requirement, and proposals that were substantially different were nevertheless rated the same.
3. Protest of agency’s decision not to consider revised proposals in the reevaluation following corrective action is untimely when filed after the issuance of the new award decision, where protester knew or should have known prior to that award decision of the agency’s intent not to consider proposal revisions.
General Counsel P.C. Highlight:
The protester alleges that the agency improperly evaluated the proposals. GAO states that the evaluation of an offeror’s proposal is a matter within the agency’s discretion. Agencies are required to identify the bases upon which offerors’ proposals will be evaluated and to evaluate offers in accordance with the stated evaluation criteria. In reviewing a protest against an agency’s evaluation of proposals, GAO will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. Here, as explained below, GAO concludes that the agency failed to properly evaluate the offerors’ proposed staffing under the Mission Capability/Proposed Enterprise End State subfactor, and improperly evaluated the proposals under the Mission Capability/Small Business Subcontracting subfactor.
NGIT first specifically argues that the agency’s risk analysis of GDIT’s proposal was flawed because the agency failed to properly consider the comments made by the team evaluating the awardee’s proposal under the Proposed Enterprise End State subfactor (PEES). The comments at issue were made primarily by one evaluator and concerned, in part, the validity of GDIT’s claims that it would realize staffing efficiencies. The contracting officer asserted, not that the evaluator’s comments in question were in fact considered, but that the agency properly decided to disregard the comments because the Air Force did not evaluate offerors’ staffing under [the PEES] subfactor. To support its contention that the Air Force was not required to evaluate staffing under the PEES subfactor, the agency cites various portions of the RFP that indicate staffing would be considered under other Mission Capability subfactors. However, GAO finds that the agency’s argument ignores the provisions of the RFP indicating that staffing is an inherent part of the PEES subfactor, and that staffing information will be used to evaluate all Mission Capability Subfactors. Moreover, the record simply does not support the agency’s claim that staffing was not assessed for any offeror under the Mission Capability/Proposed Enterprise End State subfactor. The record reveals that the agency in fact evaluated staffing under Mission Capability/PEES, but did so inconsistently.
Next, NGIT challenges the agency’s proposal evaluation under the Mission Capability/ Small Business Subcontracting subfactor. The RFP stated that the proposals would be evaluated on the extent to which the proposed level of subcontracting exceeded the 40% base requirement. During the first evaluations the agency stated that GDIT’s proposal had minimally exceed[ed] the requirement and rated that proposal green under the subfactor. The agency’s Proposal Analysis Report (PAR) concluded that NGIT and [Offeror A] both significantly exceeded the small business subcontracting standard of 40% that resulted in a BLUE. GDIT and [Offeror B] both exceeded the 40% standard, but not significantly enough to be considered a Blue. In the reevaluation, the PAR concluded that all of the proposals significantly exceeded the subcontracting requirement and improved small business opportunities, and therefore all of the proposals were rated blue under this subfactor.
Agencies are required to identify the bases upon which offerors’ proposals will be evaluated and to evaluate proposals in accordance with the stated evaluation criteria. Where an RFP states that it will evaluate the degree to which a proposal exceeds a requirement, a comparative evaluation is required. Ratings that do not distinguish between proposals that make different commitments are inconsistent with that evaluation scheme. NGIT’s proposed level of small business subcontracting, over and above the required 40% minimum, exceeded that of GDIT, a difference the contracting officer termed slight. Given the wide range of proposed subcontracting levels in excess of the required minimum, the agency’s reevaluation determination that all of the proposals significantly exceeded the requirement is not consistent with the stated evaluation criterion, namely, that a favorable assessment under this subfactor would be based on the extent to which an offeror’s proposed approach exceeded the small business subcontracting requirement. While the agency had the discretion to create an evaluation scheme that would rate blue all proposals that simply exceeded the requirement for this subfactor, which is not the evaluation method that was announced in the RFP. Because the agency failed to follow the stated evaluation criterion, GAO sustains the protest on this ground as well.
Lastly, the protester argues that the agency improperly evaluated its proposal risk as moderate under Mission Capability/Core Communications and IT Services Management. At issue is whether the agency was required to consider information submitted by NGIT as part of its protest of the first award decision. GAO states that in general, a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of proposals must be filed before that time. The protest issue, which challenges the ground rules that the agency announced for the corrective action and recompetition, is analogous to a challenge to the terms of a solicitation. In GAO’s view, the protester knew or should have known that the agency did not intend to hold discussions or permit clarifications with NGIT when it received a December 19, 2008 email from the contracting officer. It was therefore unreasonable for NGIT to await the agency’s second award decision without raising any challenge. This protest allegation is therefore found untimely.